Page:The Green Bag (1889–1914), Volume 18.pdf/91

 THE GREEN BAG with the term under consideration in any of its aspects of right as a ground of action.

of cases of privilege, "by the party," calls for little comment here. The ground of the permitted party's exemption is consent, which is often expressed by a maxim adopted from the Roman law, "volenti non fit injuria" — the man who consents to what otherwise would be a wrong ("injttria") is. barred of an action for it. Privilege "by the law," or privilege paramount, finds its origin either in duty or in interest ' and is, of course, limited accordingly.

The conception of privilege thus set forth embraces permission of two kinds: first, permission "by the party," that is, by some person granting it; and, secondly, permis sion "by the law," or permission paramount, since it is independent of the will of the per son against whom it is granted. In either of these cases the privilege may or may not amount to the higher legal right, as the It will be necessary presently to speak of examples already given show. In the law books privilege in both senses legal duty broadly, as the converse of legal is found under various designations. In right in general. Here it should be spoken the law of defamation it is called "privi of in relation to privilege. Duty as a ground leged communication;" in the law of tres of privilege may be official or quasi-official, pass to property it is called "license;" and or only moral, that is, of imperfect obliga so on. Often the word "justification," tion. It requires no' explanation to show taken from the language of pleading, is that one must be protected from the neces used as a general, synonymous designation sary consequences, however harmful, of discharging a duty which one is expected of the idea.1 It is important to understand the ground to perform. A policeman making report to upon which privilege as permission rests, his superior, an officer serving process, a but nothing more than the general ground fireman endeavoring to put out a fire, must itself can be stated here. Privilege as mere be exempt from liability for everything done permission must, of course, rest on terms; in the discharge of his duty. The law could otherwise it would be "absolute;" thus not be administered upon any other foot amounting to full legal right. It is in ing in the first and second of these cases: effect, if not in terms, conditional on being and, in the third, it would be difficult to find acted upon in good faith. Permission firemen to protect our homes if the law were (short of full legal right) would not other otherwise than it is. wise be given; in other words, mere permis That privilege may also arise from moral sion turns upon the motive or the intent of duty is not so obvious; still the fact rests the person obtaining it — he has no per in principle as well as upon authority. The mission except as his motive is rightful and case springs in essence from an instinctive his purpose in accord with the permission. desire for the preservation of the race, a The significance of this restriction between desire akin to that of self-preservation and legal right and conditional legal right will equally well-founded. It is not directly necessary to put the case upon the ground appear later. Upon what more particular ground privi of political prudence, which sees in it the lege rests in special cases or in special classes welfare of the State, though that plainly is a of torts, can only be shown when the special consequence of the first ground. I may well subject arises in the "Specific Torts" fol v. Macllwaine, 1894, 2 Q. B. 54, lowing this General Part. The first class C. 1A.;Hebditch Harrison v. Bush, 5 El. & B. 344; Jenoure 1 "Justification" may be of legal right, as in the case of self-defense or defense of property, or it may1 be of mere permission.

v. Delmege, 1891, A. C. 73 (Privy Council); Gassett v. Gilbert, 6 Gray, 94; Joannes v. Bennett,. 5 Allen, 1-69.